Appeal 2007-1621
Application 10/721,839
of any of the specifically disclosed nonapeptides for the formation of a theta
defensin[] for use in the indicated methods” (id.).
The Examiner reasons that although Lehrer “does not lay out each of
the indicated defensin peptides individually, by setting forth the
nonapeptides from which they are made, the reference nonetheless sets forth
a specific set of defensin peptides that may be immediately envisaged by
those of ordinary skill in the art” (id.). The Examiner concludes that Lehrer
therefore teaches that “each of the peptides formed by each combination of
two of the nonapeptides disclosed on pages 7-8 of the reference” would be
useful in treating viral infections, as recited in claim 1 (id.).
To show that a combination of Lehrer’s nonapeptides results in the
peptides of claim 1, the Examiner initially notes that, because Appellants’
claimed peptides are circular, their amino acid sequences can be validly
represented as starting from position 4, as follows (id. at 3):
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 2 3
SEQ ID NO: 31 R–C–L–C–R–R–G–V–C–R–C–I–C–G–R–G–I–C
4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1 2 3
SEQ ID NO: 32 R–C–I–C–T–R–G–F–C–R–C–I –C–G –R–G–I–C
The Examiner states that when nonapeptides 27 and 34 of Lehrer are
linked, the resulting peptide sequence is identical to that of realigned SEQ
ID NO: 31 (id. at 5), and that the peptide made by linking nonapeptides 18
and 34 of Lehrer demonstrates that SEQ ID NO: 32 “is also among the
defensins contemplated by the Lehrer reference” (id.). The Examiner
concludes that “[t]hose of ordinary skill in the art would have had a
reasonable expectation of success in the disclosed use of such peptides based
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